Imperial Cargo Solutions v SATAWU and Others (JA63/2016)  ZALAC 47 (1 August 2017)
In the absence of any other agreement creating an obligation on employees to perform specific duties, the obligation to perform those duties falls away upon cancellation of the collective agreement in terms of which those specific duties were agreed.
The appellant, Imperial Cargo, is a logistic company with a large fleet of trucks. It transports freight cargo, consumable goods and other goods on behalf of various clients throughout the country. Imperial employs drivers, many of whom are members of SATAWU.
The transport of freight cargo by truck requires safety measures to prevent goods falling off the truck. In the past, Imperial employed drivers' assistants whose duties were to assist the driver to load and offload the cargo, and also to perform the "tarping" duties. In 2007, Imperial abolished the position of drivers' assistants. A decision then had to be taken as to who would perform the duties previously done by the drivers' assistants.
Imperial and SATAWU concluded a collective agreement in 2007 known as the "Guard Fee Agreement" (the collective agreement). In terms of this collective agreement, it was left to the drivers to either perform the ancillary duties themselves or appoint assistants to undertake those ancillary duties. An agreed amount of money was in addition to their normal salaries paid in lieu of the ancillary duties. The drivers could keep the money for themselves if they personally performed the ancillary duties or pay assistants they employed specifically for such duties. The agreed amount was subject to an annual increase.
In 2015, SATAWU wanted to negotiate an increased guard fee above the agreed annual increase rate. When Imperial refused to meet the demand, SATAWU informed it that it was cancelling the collective agreement on one month's notice. SATAWU also informed Imperial that as from 01 February 2015, the drivers would no longer perform the ancillary duties as provided in the collective agreement. Imperial was advised to make the necessary arrangements to ensure that the ancillary duties be carried out by persons other than the drivers.
Imperial viewed the cancellation of the collective agreement and refusal to perform ancillary duties as unprotected strike action, being a 'partial refusal to work'. Imperial filed and obtained urgent interim relief directing the drivers to perform all ancillary duties on the basis that their refusal to do the work amounted to unprotected strike action.
At the Labour Court the dispute was whether the drivers' refusal to perform the ancillary function amounted to a strike action. The court concluded that refusal to perform the ancillary duties would not constitute strike action as the collective agreement in terms of which it was performed was cancelled, and the duty to perform those duties accordingly fell away. Further, that there was no general refusal to work but only a refusal to work in accordance with the terms of the cancelled collective agreement.
On appeal at the LAC, the LC's judgment was upheld. The LAC held that in the absence of any other agreement creating an obligation on the employees to perform the ancillary duties, and since they were entitled to cancel the collective agreement on notice, the obligation fell away upon cancellation of the agreement. Similarly, the obligation of the employer to pay the employees in lieu of ancillary functions in terms of the collective agreement also fell away.
This judgment raises interesting questions about what happens when a long established collective agreement is terminated - what fills that void? Consider the facts of this case: for 8 years necessary functions (we think the word 'ancillary' used in the judgment is misleading) were done by drivers or their assistants. These were core functions, paid for in addition to basic remuneration, that were then withdrawn. Whilst the LAC concluded that these actions did not constitute a strike as a result of the cancellation of the collective agreement, we note that the definition of a strike under s213 of the LRA even includes the withdrawal of voluntary overtime.
Extract from the judgment:
 The appellant's main ground of appeal is mainly directed at the court a quo's finding that the ancillary duties terminated at the cancellation of the collective agreement. Relying on the judgment of the Labour Court in SA Municipal Workers Union v City of Tshwane and Another (SAMWU), Mr Redding SC, who appeared on behalf of the appellant contended that the ancillary duties the drivers performed prior to the cancellation of the collection agreement remained in force. He submitted that the ratio of SAMWU, which according to him was not brought to the attention of the court a quo, is that the terms of the collective agreement are incorporated into the contract of employment and unless the collective agreement provided, either expressly or by implication, that its terms that had been incorporated into the individual employment contract lapsed on termination of the collective agreement, remain applicable and binding.
 Mr Redding referred to the main collective agreement's definition of the word "Drive" as including: all periods of driving, all periods during which a driver is obliged to remain at his or her post in readiness to drive, and any time spent by the driver in connection with the vehicle or its load. He submitted that duties in connection with the load necessarily include ensuring that the load is secure and safe to transport, before setting off on a trip, for example, tarping. Counsel submitted further that "Driver" is defined as an employee who is engaged in driving a motor vehicle which should be read in conjunction with the broad definition of the verb "drive". He further submitted that the duties of "general worker" are cast extremely widely, and often overlap with the duties of other, more specialised workers.
 Mr Redding finally submitted that on a proper interpretation of the main agreement, tarping functions are not reserved exclusively for general workers, and are not excluded from the scope of a driver's duties. He further referred to what he regarded as an admission by the respondents at paragraph 17 of the Answering Affidavit that "tarping and untarping were never additional duties for drivers."
 The Road Freight Association (RFA) is an employer's organisation duly registered in accordance with the LRA. The RFA was not a party to the litigation in the court a quo. It applied and was granted leave to intervene as Amicus Curiae in the proceedings in this Court. Its leave to intervene is limited to the question relating to the interpretation of the main collective agreement. It challenges the court a quo's finding that since the main collective agreement mentioned that tarping duties were one of the functions conducted by general workers, the implication was that these duties fell outside of the scope of a driver's responsibilities. RFA is concerned that this finding of the court a quo does not reflect the realities of how the main collective agreement is applied in the industry and has the potential of causing widespread confusion in the industry, and may lead to strike action during the currency of the wage agreement.
 Mr Redding appeared on behalf of the RFA as well. In addition to the submissions he made on behalf of the appellant, he submitted that unless otherwise agreed to in individual employment contracts or by way of plant level collective agreements, the practice in the industry, as regulated by the main collective agreement, is that all functions relating to the safe operation of the vehicle and the safe transport of its load, fall within the scope of the driver's normal functions, including tarping duties.
 Ms Makgamatha, an official of the first respondent, appeared on behalf of all the respondents. She submitted, in the main that the court a quo was correct in its findings and that the appeal should be dismissed.
 In light of the view I take of this matter, it shall not be necessary to deal with all the contentions made on behalf of the appellant and the Amicus. To recap, the appellant claims that the individual employees had a contractual obligation to perform ancillary duties from when the assistants were done away with. It contended that the guard fee agreement only served to provide them with money to keep if they did the work themselves or to pay the assistants they hired. The appellant further relies on the SAMWU judgment that the collective agreement which dealt with the ancillary duties formed part of the employees' contracts of employment and remained applicable as it did not provide, expressly or by implication, that upon cancellation the obligation will fall away. The appellant further relies on paragraph 17 of the Answering Affidavit that the respondents conceded that the ancillary duties were not an addition to their normal duties.
 The respondents deny all the allegations by the appellant. The appellant bore the onus to prove its case on a balance of probabilities. The contention that the respondents conceded that the ancillary duties were not additional but part of their normal duties is without merit. The text and context clearly show that the respondents deny that ancillary functions were part of their normal duties as drivers. The statement is intended to mean that the functions referred to were not added to be part of their normal or day to day duties as drivers, hence they were remunerated separately for performing them.
 It is clear from the papers that there was no written or verbal contract of employment that set out that the employees were obliged to perform ancillary duties as their normal duties. The only agreement providing for the performance of the ancillary duties is the collective agreement which gave the employees the option to either perform the functions themselves or employ assistants to perform the said duties. In both instances, the appellant was obliged to pay for whoever performed these ancillary functions.
 In the absence of any other agreement creating an obligation on the employees to perform the ancillary duties, and since they were entitled to cancel the collective agreement on notice, the obligation fell away upon cancellation of the agreement. Similarly, the obligation of the employer to pay the employees in lieu of ancillary functions in terms of the collective agreement also fell away. It would make no sense to contend that the appellant's obligation to pay for the ancillary functions fell away upon cancellation of the agreement by the respondents but that the obligation to perform the ancillary functions survived the cancellation. Without deciding on the correctness or otherwise of the ratio in the SAMWU matter, its facts and circumstances are clearly distinguishable from this case.
 The obligation relating to ancillary duties was based solely on the collective agreement and not on the main collective agreement. It is therefore not necessary to determine whether the main collective agreement obliged the respondents to perform the ancillary duties. It has never been the practice at the respondent's workplace that the employees performed the ancillary functions in terms of the main collective agreement. Such an inquiry is not relevant to the issue to be decided in this appeal and my conclusion is limited to the dispute between the parties in this appeal.
 For the above reasons, I am satisfied that the Labour Court did not misdirect itself in finding that the employees were not obliged to perform the ancillary functions and was correct in discharging the rule nisi. The appeal falls to be dismissed with costs.
 In the result, the following order is made:
The appeal is dismissed with costs.